Monday, November 30, 2020

Time to champion economic, social and cultural rights



There was a time, known as the laissez faire era, when the state was chiefly concerned with the maintenance of law and order and defence of the country against external aggression, war or armed conflict. Such a restrictive concept of the state no longer exists.

The architects of the Constitution of Nepal realised that political democracy would be useless in absence of economic democracy. It is heartening that Nepal has adopted a plethora of economic, social and cultural rights as fundamental rights with a view to uplift socio-economic condition of the national population.

Unlike the United States, Nepal has already ratified International Covenant on Economic, Social and Cultural Rights (ICESCR). “The economic, social and cultural rights could be characterised as basics to our social order as they intend to build a just society. These rights play an instrumental role in achieving socio-economic revolution to end poverty, ignorance, disease and inequality of opportunity,” said Hari Phuyal, former Attorney General and a senior advocate at Supreme Court, in an interaction programme jointly organized by Law and Policy Forum for Social Justice (LAPSOJ) and iProbono on Tuesday in Kathmandu.

He further said that the horizons of the fundamental rights would shrink in absence of economic, social and cultural rights.

Barun Ghimire, iProbono Nepal Legal Analyst, said that the judiciary is also a part of welfare state in Nepal. “The Supreme Court of Nepal has decided on number of occasions to promote social welfare policies. There are ample rights which were part of directive principles in yesteryears but now they have been introduced under fundamental rights by virtue of robust judicial activism and judicial creativity," he said.

"It's advisable for the judicial department to champion the cause of public welfare by interpreting the economic, social and cultural rights in the light of civil and political rights and other human rights. Such an attempt would not only maintain rule of law but also foster constitutionalism,” further said Ghimire, who also teaches Law at Chakrabati College of Law, Kathmandu.

Anurag Devkota, Programme Coordinator at LAPSOJ, argued that the scope of fundamental rights would be further widened at times when the state and judicial department both starts believing that there is no anti-thesis between civil and political rights and economic, social and cultural rights.

He further said that it's imperative for the government to uphold economic, social and cultural rights in order to widen the scope of human rights and avoid the violation of international obligations.

While explaining the provisions of Consumer Protection Act, 2018, Alok Pokharel, a lecturer of Constitutional Law, said, “Section 6 (5) prescribes that labelling is not required for goods that are sold openly such as fruits, vegetable. However, its proviso requires that there should be labelling in fruits and vegetable imported to Nepal. This is something difficult to be regulated considering Nepal’s open and often unregulated border with India.”

He further said that there are regular instances, when traders and individuals bring in materials including fruits and vegetable informally escaping custom and trade regulations. “In addition, fruits and vegetable brought from Taplejung and Bajura, among remotest districts of Nepal, to major cities like Kathmandu, Biratnagar and Dhangadhi can be exempted from labelling, but the same brought from nearby cities like Raxaul, Jogbani and Gauriphanta of India, which are even closer than Taplejung and Bajura to such major cities should have labels.”

Pokharel added that Section 6 of the Act requires that labelling in goods shall be done in English and Nepali languages but it ignores the majority population of Nepal who have local dialects and who do not speak or understand English and Nepali languages. Also, “Section 11 has the provision on obligation of seller/vendor, but the Act does not define who the sellers/vendors are. It is very likely that street sellers/vendors are exempted from the obligations of the Act unless otherwise specified.”

Likewise, Mariam Faruqi, director of iProbono’s South Asia regional projects based in Sri Lanka, Pakistan and Bangladesh, said that the object of their intervention is to empower Nepali lawyers to develop tools to promote and protect economic, social and cultural rights. “Capacity building of young lawyers is also on the agenda. We would also like to work on the next project and consider regional approach to enhancing litigation relating to core rights,” she said.

Kalyan Pokharel, executive member at the Supreme Court Bar Association, was of the opinion that Right to food and food sovereignty Act, 2018 is a welcome legislation which aims to foster the cause of socio-economic democracy. “This Act encourages the central, provincial and local bodies to take (joint) initiatives in limiting the complexities coming in the way of food sovereignty. If we don’t have sufficient food productivity, then we will have to face scores of socio-economic problems. Ultimately, we would fail to ensure food sovereignty. This legislation seeks to ensure food sovereignty.”

Jivesh Jha, a guest faculty at Kathmandu University School of Law Dhulikhel, said that Right to free and compulsory education Act, 2018 lacks provisions to control the monopoly of private school mafias. “In this way, Nepal’s Act falls short of adopting any measures to regulate the private school fees. So, balancing the independence of private institutions and public welfare functions has become a controversial issue.”

The speakers in the program stressed on the need of carrying out human rights agendas actively for the development of the country.

Published on 20 February 2019